Scalia uncomfortable saying if he'd support Brown v. Board of Education





If there is a topic Justice Antonin Scalia does not relish discussing, it is how he would have voted in Brown v. Board of Education had he been on the Supreme Court when it was decided in 1954.

The question came up last month at the University of Arizona in what was billed as a conversation between Justice Scalia and Justice Stephen G. Breyer. The discussion, between the court’s two primary intellectual antagonists, bore the relationship to a conversation that a fistfight does to a handshake. The justices know how to get under each other’s skin, and they punctuated their debate with exasperation, eye-rolling and venomous sarcasm.

The Brown decision, which said the 14th Amendment prohibited segregation in public schools, is hard to square with Justice Scalia’s commitment to originalism, the theory of constitutional interpretation that says judges must apply the original understanding of the constitutional text.

Brown presents originalists with a problem. The weight of the historical evidence is that the people who drafted, proposed and ratified the 14th Amendment from 1866 to 1868 did not believe themselves to be doing away with segregated schools.

Yet Brown is widely thought to be a moral triumph. A theory of constitutional interpretation that cannot account for Brown is suspect if not discredited.

Originalists hate the subject. Justice Scalia has called it “waving the bloody shirt of Brown.”



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